Foster v. Smith

Full title: SCOTT ALLEN FOSTER, Petitioner, v. RAYMOND SMITH, Warden, and HECTOR…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date published: Nov 25, 2019

429 F. Supp. 3d 940 (D.N.M. 2019)

Opinion

No. CIV 18-0429 JB\KBM

11-25-2019

Scott Allen FOSTER, Petitioner, v. Raymond SMITH, Warden, and Hector Balderas, Attorney General for the State of New Mexico, Respondents.

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings of Fact and Recommended Disposition, filed June 19, 2019 (Doc. 17)("PF&RD"); and (ii) the Petitioner's Objections to Report and Recommendations, filed July 5, 2019 (Doc. 18)("Objections"). On May 8, 2019, the Court referred, pursuant to 28 U.S.C. § 636(b), this case to the Honorable Karen B. Molzen, United States Magistrate Judge, for a report and recommendation. See Order of Reference Relating to Prisoner Cases, filed May 8, 2019 (Doc. 4). Magistrate Judge Molzen issued the PF&RD on June 19, 2019, recommending that the Court deny Petitioner Scott Allen Foster's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed May 7, 2018 (Doc. 1)("Petition"), and also that the Court deny relief on the grounds stated in Foster's Supplemental Amendment, filed August 13, 2018 (Doc. 7)("Supplement").

LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

District courts may refer dispositive motions to a magistrate judge for a recommended disposition. See Fed. R. Civ. P. 72(b)(1) ("A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense."). Rule 72(b)(2) governs objections: "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). Finally, when resolving objections to a magistrate judge's proposal, "the district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1)(C).

"The filing of objections to a magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute." United States v. One Parcel of Real Prop., with Bldgs, Appurtenances, Improvements, and Contents, Known as: 2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1059 (10th Cir. 1996) (" One Parcel")(internal quotation marks omitted)(quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ). As the United States Court of Appeals for the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act[, 28 U.S.C. §§ 631 - 39 ], including judicial efficiency." One Parcel, 73 F.3d at 1059 (citations omitted).

The Tenth Circuit held "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel, 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, [has] adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.’ " One Parcel, 73 F.3d at 1059 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) ). In addition to requiring specificity in objections, the Tenth Circuit has stated that "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) ("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived."). In an unpublished opinion, the Tenth Circuit stated that "the district court correctly held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate." Pevehouse v. Scibana, 229 F. App'x 795, 796 (10th Cir. 2007) (unpublished).¹

1 Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) ("Unpublished decisions are not precedential, but may be cited for their persuasive value."). The Tenth Circuit has stated: "In this circuit, unpublished orders are not binding precedent, ... and ... citation to unpublished opinions is not favored. However, if an unpublished opinion ... has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision." United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005) (citations omitted). The Court concludes that Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order Adopting the Magistrate Judge's Proposed Findings and Recommended Disposition.

In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060. The Supreme Court of the United States of America -- in the course of approving the United States Court of Appeals for the Sixth Circuit's use of the waiver rule -- has noted:

It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort of review the district court should perform when no party objects to the magistrate's report. See S. Rep. No. 94-625, pp. 9-10 (1976) (hereafter Senate Report); H. R. Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162 (hereafter House Report). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate's report than the court considers appropriate. Moreover, the Subcommittee that drafted and held hearings on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that "[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time." See Jurisdiction of United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis added)(hereinafter Senate Hearings). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference Committee on the administration of the magistrate system, testify that he personally followed that practice. See id., at 11 ("If any objections come in, ... I review [the record] and decide it. If no objections come in, I merely sign the magistrate's order."). The Judicial Conference of the United States, which supported the de novo standard of review eventually incorporated in § 636(b)(1)(C), opined that in most instances no party would object to the magistrate's recommendation, and the litigation would terminate with the judge's adoption of the magistrate's report. See Senate Hearings, at 35, 37. Congress apparently assumed, therefore, that any party who was dissatisfied for any reason with the magistrate's report would file objections, and those objections would trigger district court review. There is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate's report to which no objections are filed. It did not preclude treating the failure to object as a procedural default, waiving the right to further consideration of any sort. We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.

Thomas v. Arn, 474 U.S. at 150-52, 106 S.Ct. 466 (footnotes omitted).

The Tenth Circuit also has noted, "however, that ‘[t]he waiver rule as a procedural bar need not be applied when the interests of justice so dictate.’ " One Parcel, 73 F.3d at 1060 (alteration added by One Parcel )(quoting Moore v. United States, 950 F.2d at 659) ("We join those circuits that have declined to apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not apprise the pro se litigant of the consequences of a failure to object to findings and recommendations." (citations omitted)). Cf. Thomas v. Arn, 474 U.S. at 154, 106 S.Ct. 466 (noting that, while "[a]ny party that desires plenary consideration by the Article III judge of any issue need only ask," a failure to object "does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard"). In One Parcel, the Tenth Circuit noted that, although the district judge had decided sua sponte to conduct a de novo review despite the lack of specificity in the objections, the Tenth Circuit deemed the issues waived on appeal because doing so would advance the interests underlying the waiver rule. See 73 F.3d at 1060-61 (citing cases from other circuits where district courts elected to address merits despite potential application of waiver rule, but circuit courts opted to enforce waiver rule).

Where a party files timely and specific objections to the Magistrate Judge's proposed findings and recommendation "on ... dispositive motions, the statute calls for a de novo determination, not a de novo hearing." United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). "[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. at 676, 100 S.Ct. 2406 (quoting 28 U.S.C. § 636(b) ; and citing Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976) ). The Tenth Circuit requires a "district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation," when conducting a de novo review of a party's timely, specific objections to the Magistrate Judge's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). "When objections are made to the magistrate's factual findings based on conflicting testimony or evidence, ... the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987) (per curiam).

A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to the Magistrate Judge's report "based upon conflicting evidence or testimony." Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave "considerable deference to the magistrate's order." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court need not, however, "make any specific findings; the district court must merely conduct a de novo review of the record." Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000). "[T]he district court is presumed to know that de novo review is required. Consequently, a brief order expressly stating the court conducted de novo review is sufficient." Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996) (citing In re Griego, 64 F.3d at 583-84 ). "[E]xpress references to de novo review in its order must be taken to mean it properly considered the pertinent portions of the record, absent some clear indication otherwise." Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993) (citation omitted). The Tenth Circuit has previously held that a district court properly conducted a de novo review of a party's evidentiary objections when the district court's "terse" order contained one sentence for each of the objecting party's "substantive claims" and did "not mention his procedural challenges to the jurisdiction of the magistrate to hear the motion." Garcia v. City of Albuquerque, 232 F.3d at 766. The Tenth Circuit has explained that brief district court orders that "merely repeat[ ] the language of § 636(b)(1) to indicate its compliance" are sufficient to demonstrate that the district court conducted a de novo review:

It is common practice among district judges in this circuit to make such a statement and adopt the magistrate judges' recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court's statement as establishing that it failed to perform the required de novo review.

In re Griego, 64 F.3d at 584.

Notably, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), because "Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations," United States v. Raddatz, 447 U.S. at 676, 100 S.Ct. 2406. See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d at 724-25 (holding that the district court's adoption of the magistrate judge's "particular reasonable-hour estimates" is consistent with the de novo determination that 28 U.S.C. § 636(b)(1) and United States v. Raddatz require).

ANALYSIS

The Court has reviewed de novo Foster's Petition, his Supplement, Magistrate Judge Molzen's PF&RD, and Foster's Objections, and has determined that the Court should overrule Foster's Objections, and deny his Petition and Supplement.

In his Objections, Foster maintains, first, that the Court should grant his Petition, because his trial attorney, Randall Harris, was impaired by drugs and/or alcohol during his jury trial. See Objections at 1-2. He emphasizes that the trial court inquired about a possible impairment during jury selection, remarking to Mr. Harris: "You seem to be slurring your speech." Objections at 1-2. Additionally, he asserts that drugs were found at Mr. Harris's home at the time of his death, and that his autopsy report revealed that hydrocodone, ethanol, diazepam, and trazadone were in his system at the time of his death. See Objections at 2.

In her PF&RD, Magistrate Judge Molzen addresses similar arguments by Foster. In doing so, she notes that Foster's criminal jury trial took place in the County of Curry, Ninth Judicial District Court, State of New Mexico, the same court to which the Court must turn for evaluation of the State's rationale for denial of habeas relief. See PF&RD at 13. She explains that, on collateral review, the state trial court considered and rejected Foster's contention that Mr. Harris' drug and/or alcohol impairment rendered his representation of Foster ineffective. See PF&RD at 13 (citing Order Denying Petition for Writ of Habeas Corpus at 5,² No. D-905-CR-2013-00144, filed in state court January 12, 2018, filed in federal court January 18, 2019 (Doc. 14-6)("State Habeas Order")). Specifically, when the question of Mr. Harris' possible impairment arose during jury selection, the state trial court "directly addressed Mr. Harris about the issue and found that Mr. Harris was not impaired." See State Habeas Order at 8. The state trial court was "in close proximity to Mr. Harris and made an informed ruling on the issue of Mr. Harris's impairment." State Habeas Order at 8. According to the state trial court, neither its personal observations nor the trial record supported the conclusion that Mr. Harris was impaired during his representation of Foster at trial. State Habeas Order at 9.

2 The Order Denying Petition for Writ of Habeas Corpus is not the first document contained in Doc. 14-6, but, rather, begins on page 5 as delineated by the CM/ECF page numbers in blue at the top right of the document. When citing to the Order Denying Petition for Writ of Habeas Corpus, the Court cites to the CM/ECF page numbers.

In her analysis of this asserted ground for relief, Magistrate Judge Molzen recounted the testimony from Mr. Harris's former administrative assistant, Debby Phillips, at the state evidentiary hearing. See PF&RD at 13. Phillips worked closely and consistently with Mr. Harris before and during Foster's trial, and swore that Mr. Harris was not impaired by drugs and/or alcohol at the time of jury selection or on the day of trial. See State Habeas Order at 8.

Ultimately, the state trial court applied the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (" Strickland"), test and concluded that Foster failed to show that Mr. Harris' representation was not that of a "reasonable, competent attorney" or that, but for some error by Mr. Harris, there was a "reasonable probability that the result of the conviction proceedings would have been different." State Habeas Order at 9. Acknowledging that the state trial court was in an ideal situation to personally observe and evaluate Mr. Harris' purported impairments, Magistrate Judge Molzen, in turn, concluded that Foster failed to satisfy his burden under 28 U.S.C. § 2254(d). That is, he failed to demonstrate that the state trial court determined the facts concerning Mr. Harris' purported impairment in an unreasonable manner or that its decision under Strickland was contrary to or involves an unreasonable application of clearly established federal law. Having reviewed the record as a whole, the Court agrees with that determination and with the conclusion that there is at least a reasonable argument that Mr. Harris satisfies Strickland's deferential standard.

Foster makes one new attempt to establish Mr. Harris' impairment in his Objections. He offers what he submits is a $33,000.00 check showing that Mr. Harris was "in Rehab at the time he should have been preparing for trial." Objections at 2. The check, dated September 27, 2013, is payable to the order of "Betty Ford Clinic" and includes the following handwritten memo: "MR#11695023 Randall H. IP." Objections at 14 (providing a copy of the check). Foster does nothing to authenticate the check, but refers the Court to a Tenth Circuit case in support of his position that it constitutes evidence of ineffective assistance of counsel. See Objections at 2 (citing Thomas v. Nelson, 117 F. App'x 652 (10th Cir. 2004) (unpublished)).

Thomas v. Nelson, like this case, involves a habeas petitioner's allegations of a drug-impaired trial attorney. In that case, the petitioner's trial attorney was addicted to crack cocaine and, during the week before the scheduled trial, sought inpatient treatment for his addiction. See 117 F. App'x at 653. Contrary to his representation to the state trial court that he met with the petitioner approximately four times in the week leading up to trial, a disciplinary decision revealed that he had actually been in an inpatient drug-treatment program during that time. See 117 F. App'x at 654 & n.3. It also was uncontroverted that he failed to perform certain pretrial tasks, including filing pretrial motions and attending the final pretrial conference. See 117 F. App'x at 653. The petitioner filed a § 2254 petition, alleging that because of his attorney's impairment and inadequate preparation, he was coerced into pleading guilty and foregoing trial in violation of his rights under the Sixth Amendment to the Constitution of the United States. See 117 F. App'x at 653. The Tenth Circuit held that the federal district court prematurely dismissed the petitioner's § 2254 petition without an evidentiary hearing on his ineffective assistance of counsel claim. See 117 F. App'x at 653.

Although there are factual similarities between this case and Thomas v. Nelson, the takeaway from Thomas v. Nelson is not that drug addiction, standing alone, amounts to ineffective assistance of counsel. Instead, under the circumstances in Thomas v. Nelson, the Tenth Circuit determined that the petitioner had "provided a sufficient record to merit the opportunity to present evidence in support of his claim concerning [his trial counsel's] inadequate preparation." 117 F. App'x at 658. Important facts here, however, make this case distinguishable. First, and perhaps most important, Foster's unauthenticated check to the Betty Ford Clinic is dated nine months before Foster's jury trial. It does not demonstrate, as Foster maintains, that "Mr. Harris was in Rehab at the time he should have been preparing for trial." Objections at 2. Second, Foster does not assert that his trial attorney's inadequate preparation coerced him into giving up his right to a jury trial. Rather, Foster was convicted at the conclusion of a jury trial, a trial at which the state court had the opportunity to observe and evaluate Mr. Harris's performance. The state trial court determined that Mr. Harris was not impaired and found his performance to be that of a reasonable, competent attorney. Even if Mr. Harris spent time in an inpatient rehabilitation facility in 2013 for a drug addiction, the Court is satisfied that no evidentiary hearing is required on Foster's Petition, which the Court will deny with respect to his allegation of ineffective assistance of counsel.

Next, Foster maintains that the Court should grant his Petition as to Ground Two. See Objections at 4. In Ground Two, which Foster entitles "Convicted Felon Michael Robison [sic]," he details various concerns about the use of Michael Robinson as a confidential informant and a witness. Petition at 7; Attachment to Petition³ at 12-13, filed May 7, 2018 (Doc. 1-1). In the PF&RD, Magistrate Judge Molzen does not pass on this allegation's merits, concluding that it is procedurally defaulted. The Court agrees that it should not consider Ground Two of Foster's Petition absent some demonstration by Foster of cause and prejudice for failing to comply with the State's procedural rules or a fundamental miscarriage of justice. See Smallwood v. Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999). To show "cause" for failing to comply with the State's procedural rules, Foster must show that "some objective factor external to the defense impeded his compliance with New Mexico's procedural rules." Watson v. New Mexico, 45 F.3d 385, 388 (10th Cir. 1995) (citations and quotation marks omitted). He has not made this showing, in his Objections or otherwise.

3 The Court could not identify the first document Foster attaches to his Petition which constitutes the first twenty-one pages of Doc. 1-1, but notes that it appears to be a recitation of facts on which Foster bases a writ of habeas corpus. See Attachment to Petition at 1-21, filed May 7, 2018 (Doc. 1-1).

To demonstrate a "fundamental miscarriage of justice," a petitioner must make a "colorable showing of factual innocence." Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997) (citation omitted). A claim of factual innocence requires a petitioner to "support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." Frost v. Pryor, 749 F.3d 1212, 1232 (10th Cir. 2014) (citation and quotation omitted). This evidence must be so convincing that, had it been introduced at trial, no reasonable juror would find the petitioner guilty. See Frost v. Pryor, 749 F.3d at 1232. Foster has submitted no new evidence to make a showing of factual innocence, but instead offers his self-serving assurance that he is "actually innocent." Objections at 4. His procedurally defaulted claims may not proceed under the "fundamental miscarriage of justice" test. Moreover, the Court agrees that his second ground for relief cannot be easily disposed of on the merits. Accordingly, Foster's failure to seek certiorari review of the claims in Ground Two of his Petition is not excused, and the Court will not consider this allegation.

Some of the assertions in Foster's Objections as to Ground Two do not relate to Robinson, but Foster asserts them in his Petition under the heading "Additional Acts Showing Ineffective Assistance of Counsel." For example, he maintains that the video that the State suggests shows the drug transaction was "tampered with" and that, "[h]ad Mr. Harris investigated and retained an expert[,] he would have came [sic] to the same conclusion." Objections at 3. Foster faults Mr. Harris for failing to investigate why his words were rendered inaudible in the video, insisting that in an unaltered version of the video, he would have been heard stating "I do not sell drugs." Objections at 3-4.

In the State Habeas Order denying Foster's state habeas petition, the state trial court discusses testimony that James Lilly -- a "digital architect" -- presented to the effect that the video taken by undercover officer Kandi Garcia had been "modified (tampered with)." State Habeas Order at 15. Foster's state habeas attorney testified that Mr. Harris had taken steps to try to improve the quality of the audio with Foster's approval. See State Habeas Order at 15. The state trial court found that "any indication of tampering is to be credited to Mr. Harris as an attempt to effectively represent [Foster]." State Habeas Order at 15. The state trial court further determined that there was no evidence that the State had tampered with the video and that the issue, as presented by Foster, is "completely unsupported by fact." State Habeas Order at 16. Here, Foster has not demonstrated that the state trial court's finding as to the alleged manipulation of the video was made in an unreasonable manner, or that it was contrary to or involved an unreasonable application of clearly established federal law. Moreover, the Court agrees with Magistrate Judge Molzen's determination that Foster's arguments regarding Mr. Harris's failure to investigate involves decisions related to trial tactics and that Foster has not overcome a presumption of sound trial strategy. The Court will deny the Petition with respect to Foster's assertion that the State tampered with video evidence.

Next, Foster contends that Mr. Harris performed inadequately when he neglected to file a motion to suppress before trial. Objections at 4. Foster does not articulate the evidence that should have been suppressed or the grounds on which Mr. Harris should have moved for its suppression. As with Mr. Harris' pretrial investigation efforts, Magistrate Judge Molzen found that Mr. Harris' failure to file a motion to suppress fell within the ambit of decisions related to trial tactics for which Mr. Harris enjoys a presumption of sound trial strategy. PF&RD at 12. Again, the Court agrees with Magistrate Judge Molzen. Foster has not demonstrated that Mr. Harris' representation, and specifically his failure to file a motion to suppress, was not that of a reasonable, competent attorney. Moreover, he has not demonstrated that he would not have been convicted had Mr. Harris moved to suppress certain evidence. The Court will overrule Foster's Objections as to this issue and will deny his Petition.

Foster continues to insist in his Objections that Mr. Harris had an "undisclosed irreconcilable conflict," namely his employment of Monica Eileen Caroland, the wife of Phil Caroland, who led the investigation that resulted in charges against Foster. See Objections at 5. In her PF&RD, Magistrate Judge Molzen concludes that Foster has not met his burden with respect to a conflict of interest, relying on an affidavit in which Mrs. Caroland states that she did not work with Mr. Harris' law firm in 2013, having left in December, 2012. See PF&RD at 16-17. Magistrate Judge Molzen also notes that the state trial court concluded that no conflict existed, and she characterizes this determination and the state trial court's rationale as "perfectly reasonable." PF&RD at 17. In evaluating the purported conflict, the state trial court considered an affidavit from Mrs. Caroland stating that her employment with Mr. Harris' firm ended in December, 2012, as well as testimony from Mr. Caroland and Phillips corroborating this statement. See State Habeas Order at 11-12.

In his Objections, Foster posits that "[e]vidence shows that [Mrs. Caroland] was working at the Law firm," referring the Court to two exhibits attached to his Petition. Objections at 5 (citing Attachment to Petition at 68, 81). The first exhibit is a March 15, 2018, letter to Foster from the Law Offices of the Public Defender. Letter from Judy Gonzales to Scott Foster (dated March 15, 2018)("First Letter"), Attachment to Petition at 81. Therein, the Custodian for Public Records for the New Mexico Public Defender's Department informs Foster that a notice appeared in the Bar Bulletin, indicating that Mrs. Caroland, previously of the Harris Law Firm, changed her New Mexico State Bar status to inactive on April 12, 2013. See First Letter, Attachment to Petition at 81. The second exhibit is an August 14, 2014, letter to Richard Mackenzie from Phillips, Mr. Harris' assistant, which references Foster's criminal matter. Letter from Debby Phillips to Richard Mackenzie (dated August 14, 2014)("Second Letter"), Attachment to Petition at 68. The firm's letterhead includes both "Randall M. Harris, Attorney at Law" and "Monica E. Caroland, Attorney at Law." See Second Letter, Attachment to Petition at 68. Foster posits that "[t]hese documents constitute reason to have an evidentiary hearing as they contradict [Mrs. C]aroland[']s affidavit." Objections at 5.

Neither Mrs. Caroland's change to inactive status in April, 2013, nor the letterhead retaining her name in August, 2014, render the state habeas court's determination unreasonable. Indeed, neither fact establishes that Mr. Harris' firm employed Mrs. Caroland during the time of Mr. Harris's representation of Foster in 2013. The Court overrules Foster's Objections as to his claim of an irreconcilable conflict and denies his Petition as to this ground.

Foster next takes issue with Magistrate Judge Molzen's treatment of Ground Four of his Petition -- his claim that neither Mr. Caroland nor Kandi Garcia had the proper law enforcement appointments. In his Petition, Foster argues that, if Mr. Harris had conducted a basic investigation of their commissions, he would have been able to prevent them from testifying at trial and would have nullified the Grand Jury Indictment. See Attachment to Petition ¶ 76, at 14-15. While the State has maintained that the proper certifications were not on file for Mr. Caroland because of a clerical error, Foster insists that "[D]eputy [C]aroland was not certified nor commissioned from 2007-2013." Objections at 6 (citing Attachment to Petition at 98, 117-19; Appendix at 51-54, filed June 4, 2018 (Doc. 6)). In contrast, the state habeas court, which heard testimony from Private Investigator William Elliott, determined that Mr. Caroland was at all relevant times a certified law enforcement officer but that, through no fault of his own, a clerical error had caused "an issue" with the filing of his commission card. State Habeas Order at 46. Having reviewed the documents that Foster references in his Objection, the Court is satisfied that they do not show the state habeas court's finding on this issue to be unreasonable. Rather, the Court agrees with Magistrate Judge Molzen's assessment that Foster's claims should not prevail because he has not demonstrated prejudice by virtue of some issue with the officers' commissions. Moreover, the Court agrees that Mr. Harris' failure to pursue a challenge Mr. Caroland's and Garcia's commissions is not constitutionally defective. The Court overrules Foster's Objections in this regard, and will deny his Petition as to Ground Four.

Finally, Foster objects to Magistrate Judge Molzen's rejection of his double jeopardy claim. Magistrate Judge Molzen determined that the Court of Appeals of New Mexico's denial of this claim is not contrary to, and does not involve, an unreasonable application of clearly established federal law. Foster now quotes from a portion of his arrest warrant, which states: "Molett took the drugs from Kirven and took Officer Garcia to the back room and was provided with five (5) large rocks of what appeared to be crack cocaine." Objections at 7 (quoting Affidavit for Arrest Warrant, Attachment to Petition at 158). He does not include, however, the two preceding sentences, which state: "Molett came into the living room[,] stopped[,] and looked at Foster. Foster than [sic] told him that he could sell the drugs." Affidavit for Arrest Warrant, Attachment to Petition at 158. Foster insists that his "drug trafficking charge should be vacated under the double jeopardy issue since there was no sell [sic] of drugs by Mr. Foster." Objections at 8. Yet, regardless whether Foster personally handed any drugs to Garcia in exchange for money, the Court is satisfied that the State nevertheless presented evidence against Foster on each element of trafficking a controlled substance. As used in the New Mexico Controlled Substances Act, N.M. Stat. Ann. §§ 30-31-1 to 30-31-41, " ‘distribute’ means to deliver," and to " ‘deliver’ means the actual, constructive or attempted transfer [of a controlled substance] from one person to another." N.M. Stat. Ann. § 30-31-2(G), (J). A defendant still "transfers" a controlled substance in violation of the Controlled Substances Act even when he or she does so through an intermediary. See, e.g., State v. Bello, 2017-NMCA-049, ¶¶ 14-15, 399 P.3d 380, 385 (rejecting the defendant's argument that he was subject to double jeopardy where he was prosecuted for both a drug transaction through an intermediary as well as for a drug transaction in which he had direct involvement); State v. Montes, 2007 NMCA 083, ¶ 29, 142 N.M. 221, 164 P.3d 102, 109 (reasoning that the defendant could be liable for distribution of drugs, even though he was not present at the time of the sale, if he "caused the transfer that took place"). Similarly, the applicable jury instruction provides that a defendant is guilty of distribution of a controlled substance if he transferred or "caused the transfer" of drugs to another. NMRA, Crim. UJI 14-3103.

As Magistrate Judge Molzen notes in her PF&RD, the Court of Appeals of New Mexico was able to discern two separate factual bases for Foster's drug trafficking and conspiracy convictions. The Court of Appeals of New Mexico explained that Foster, Kirven, and Molett had an agreement to participate in the sale of drugs that was "separate and apart from the drug sale to Robinson." Second Notice Proposed Summary Disposition at 93, filed January 18, 2019 (Doc. 14-1). As for the actual sale of drugs, the arrest warrant asserts and the State presents evidence that Foster caused the transfer of drugs to Garcia, albeit through an intermediary. The Court agrees with Magistrate Judge Molzen's determination that Foster's alleged conduct with respect to the conspiracy agreement and the drug transaction was non-unitary and that it is, therefore, unnecessary for the Court to determine whether the legislature intended multiple punishments. See Lucero v. Kerby, 133 F.3d 1299, 1320-22 (10th Cir. 1998) (concluding that, although there was no significant separation of conduct by time or place, the acts related to the offenses were of a different quality or nature, and were therefore non-unitary). The Court concludes that the state court's application of federal law on the issue of double jeopardy is a reasonable one, as the acts supporting Foster's convictions for drug trafficking and conspiracy were distinguishable. The Court will deny Foster's Petition with respect to his double jeopardy claim.

IT IS ORDERED that: (i) the Magistrate Judge's Proposed Findings of Fact and Recommended Disposition, filed June 19, 2019 (Doc. 17), is adopted; (ii) the Petitioner's Objections to Report and Recommendations, filed July 5, 2019 (Doc. 18), are overruled; (iii) the Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed May 7, 2018 (Doc. 1), is denied; (iv) the requests in the Petitioner's Supplemental Amendment, filed August 13, 2018 (Doc. 7), are denied; (v) the action is dismissed with prejudice; (vi) for the reasons stated in the Magistrate Judge's Proposed Findings of Fact and Recommended Disposition, Petitioner Foster has not made a substantial showing of a denial of a constitutional right; therefore, a certificate of appealability is denied; and (vii) a Final Order pursuant to rule 58 of the Federal Rules of Civil Procedure will be entered dismissing this action with prejudice.

PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

KAREN B. MOLZEN, UNITED STATES MAGISTRATE JUDGE

THIS MATTER comes before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") (Doc. 1 ) and the Supplement (Doc. 6 ) and Supplemental Amendment (Doc. 7 ), filed by Scott Allen Foster ("Petitioner") on May 7, 2018, June 4, 2018 and August 13, 2018, and fully briefed on January 18, 2019 (Doc. 15 ). The Honorable James O. Browning referred this case to me to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 4. Having reviewed the submissions of the parties and the relevant law, the Court recommends that the Petition be denied on its current record.¹ I. Background Facts and Procedural Posture

1 The Court need not hold an evidentiary hearing, as Petitioner has not made any showing that his claims rely on "a new rule of constitutional law, made retroactive ... by the Supreme Court[,]" "a factual predicate that could not have been previously discovered through the exercise of due diligence[,]" or that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty[,]" as required by 28 U.S.C. § 2254(e)(2).

Petitioner is in state custody pursuant to the Amended Judgment, Sentence, and Order Determining Habitual Offender Status, which was filed October 27, 2014, in the Ninth Judicial District Court, Curry County, New Mexico. See Doc. 14 , Ex. B. Following a one-day trial on June 20, 2014, a jury found Petitioner guilty of first-degree trafficking in controlled substances (Count 1) and second-degree conspiracy to commit trafficking in controlled substances (Count 2). Id. at 1. These counts arose during an undercover narcotics investigation conducted by Phil Caroland, a Curry County Sheriff's Deputy at the time, which targeted the sale of crack cocaine in Clovis, New Mexico. Doc. 14-4 , Ex. BB, at 196. During the investigation, a confidential informant, Michael Robinson, and an undercover police officer, Kandi Garcia, conducted approximately 75 controlled buys of illegal drugs. See id. at 196-97. One such buy took place on November 16, 2012, when Robinson and Officer Garcia entered a house located at 1113 W. 10^th Street, where Petitioner was present, to purchase cocaine. Id. at 203, 215. During the transaction, Officer Garcia was equipped with a video recording device; however, the recording suffered from poor sound quality and the conversations, largely, could not be understood. Id. at 204, 217, 218. Upon emerging from the home at 1113 W. 10^th Street, Officer Garcia and Robinson returned to the police station, where they produced a substance which was ultimately determined to be 8/10 of a gram of crack cocaine. Id. at 179-82, 204-05.

Deputy Caroland was married to Monica Caroland, a lawyer who worked in the law office of Petitioner's trial attorney, Randall Harris, at the time of the November 16, 2012 controlled buy. See Doc. 1-1 at 28. Mrs. Caroland left Mr. Harris's firm in December 2012, however, well before Mr. Harris entered his appearance for Petitioner in April 2013. See id. at 27-28, 82; Doc. 14-6 at 108. Deputy Caroland testified that he did not have access to any information concerning the investigation or prosecution of Petitioner by virtue of his wife's employment at the Harris Law Firm. Doc. 1-1 at 29. Although Deputy Caroland was sworn in by the Curry County Sheriff as a certified police officer, he later learned that a clerical error resulted in his commission card not being properly filed. Id. at 29-30.

Petitioner appealed his drug trafficking convictions. Doc. 14-1 , Ex. C & Ex. D. On September 16, 2015, the New Mexico Court of Appeals proposed summary affirmance as to the four issues he raised but proposed reversal of his conspiracy conviction, asking sua sponte (1) whether convictions for drug trafficking and conspiracy to commit drug trafficking, which arise from a single transaction, violate double jeopardy; and (2) whether Petitioner had been illegally sentenced. Doc. 14-1 , Ex. F. Ultimately, after considering memoranda of the parties, the Court of Appeals affirmed the trial court in an April 18, 2016 Memorandum Opinion. Doc. 14-1 , Ex. K. On June 10, 2016, the New Mexico Supreme Court denied a petition for certiorari. Doc. 14-1 , Ex. O.

Mr. Harris died on March 2, 2015. Doc. 14-6 , Ex. DD. Thereafter, on August 10, 2015, Petitioner's new attorney filed a state petition for writ of habeas corpus, alleging that Mr. Harris's representation was constitutionally defective because he: (1) was impaired by a drug and alcohol habit throughout the course of the representation; (2) failed to disclose the "irreconcilable conflict" created by his employment of Monica Caroland; (3) failed to show that Deputy Caroland and Officer Garcia lacked the proper appointment as commissioned law enforcement officers; (4) failed to move for disclosure of Officer Garcia's supplemental report; and (5) failed to take certain actions with respect to the confidential informant, Michael Robinson. Doc. 14-2 , Ex. Q. The state district court denied the petition. Doc. 14-6 , Ex. DD.

Petitioner sought a writ of certiorari from the New Mexico Supreme Court on the following issues: (1) whether trial counsel Mr. Harris was ineffective due to an impairment; (2) whether Mr. Harris was operating under an irreconcilable conflict; and (3) whether Deputy Caroland was acting without lawful authority. See Doc. 14-6 , Ex. HH. The New Mexico Supreme Court denied the petition for writ of certiorari by Order, without discussion, on February 15, 2018. Doc. 14-6 , Ex. II. Because the Supreme Court's Order did not include any discussion or rationale, the Court is left to consider, for purposes of its § 2254 analysis, the rationale supplied by the state trial court.² See Wilson v. Sellers , ––– U.S. ––––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018).

2 In Wilson , the United States Supreme Court clarified that when a state supreme court decision "does not come accompanied with ... reasons," the federal court must " ‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers , ––– U.S. ––––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018).

Petitioner filed his federal habeas petition on May 7, 2018. Doc. 1. Parroting many of the factual and legal assertions offered by counsel in his state habeas petition and on direct appeal, Petitioner enumerates the following grounds for relief: (1) "Defense counsel Randall Harris [sic] impairment when representing Petitioner"; (2) "Convicted Felon Michael Robison [sic]"; (3) "Randall Harris's undisclosed irreconcilable conflict"; (4) "Lack of proper appointments of Phil Caroland and Kandi Garcia as commissioned law enforcement officers"; (5) "Double Jeopardy"; and (6) "Illegal Enhancement."³ Additionally, Petitioner alleges the grounds of "Undercover Sting Operation" and "Additional acts showing innefective [sic] assistance of counsel" in his Petition (Doc. 1 at 14), but the Court finds that these grounds are better addressed in conjunction with his other ineffective assistance of counsel claims, rather than as distinct grounds.

3 Petitioner's first four grounds were asserted in the original Petition he filed May 7, 2018. See Doc. 1 at 5, 7, 8, 10, 14. Then, on August 13, 2018, he filed his "Supplemental Amendment" in which he moved to "amend" the issues of "Double Jeopardy" and "Illegal Enhancement." Doc. 7 at 1. For continuity sake, the Court refers to these two additional issues as grounds five and six. Respondents concede that Petitioner exhausted available state-court remedies as to these grounds by seeking discretionary review of the court of appeals' April 18, 2016, Memorandum Opinion. Doc. 14 at 5 (citing Doc. 14-1 , Ex. K and Doc. 14-1 , Ex. L at 1, 8-10).

Petitioner filed his Petition after April 24, 1996; thus, it is subject to the terms of the Antiterrorism and Effective Death Penalty Act ("the AEDPA"). For purposes of the "in custody" requirement of 28 U.S.C § 2254, Respondents concede that Petitioner was in custody at the filing of the Petition and the Answer. Doc. 14 at 5.

II. Legal Standard

Federal courts have statutory authority under Section 2254, as amended by AEDPA, to issue habeas corpus relief for persons in state custody. See Harrington v. Richter , 562 U.S. 86, 97-98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). AEDPA "circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings," subject to only two exceptions. Hooks v. Workman , 689 F.3d 1148, 1163 (10th Cir. 2012). A federal court may grant relief from a state court decision only where a petitioner demonstrates that the trial court's resolution of his claims was " ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’ or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ " Id. (quoting 28 U.S.C. § 2254(d)(1), (2) ). In analyzing the state court's decision, this Court may only review the record that was before the state court and all factual findings are presumed correct unless rebutted by "clear and convincing evidence." Id. (quoting 28 U.S.C. § 2254(e) ).

Under Section 2254(d)(1), the threshold question asks whether the applicant is seeking to invoke a rule of law that was clearly established by the Supreme Court at the time the conviction became final. Byrd v. Workman , 645 F.3d 1159, 1165 (10th Cir. 2011) (citation omitted); see also Williams v. Taylor , 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). If the law was clearly established, then the court determines whether the state court decision was "contrary to or involved an unreasonable application of that clearly established law." Byrd , 645 F.3d at 1165 (quoting Turrentine v. Mullin , 390 F.3d 1181, 1189 (10th Cir. 2004) (internal quotations omitted)).

First, a state-court decision is "contrary to" clearly established law "if the state court applies a rule different from the governing law set forth" by the Supreme Court or "if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Hooks , 689 F.3d at 1163 (quoting Bell v. Cone , 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ). The state court is not required to cite to, or even be aware of, Supreme Court decisions, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer , 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002).

Second, "[a] state-court decision is an ‘unreasonable application’ of clearly established federal law when the state court ‘identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case.’ " Hooks , 689 F.3d at 1163 (quoting Wiggins v. Smith , 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ). AEDPA precludes issuance of a writ simply because the federal court concludes in its independent judgment that the state court applied the federal law erroneously or incorrectly. Byrd , 645 F.3d at 1166. Instead, the application must also be "objectively unreasonable." Id. As long as "fairminded jurists could disagree" as to the correctness of the state court's decision, Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004), this " ‘highly deferential standard for evaluating state-court rulings[ ]’ ... demands that state-court decisions be given the benefit of the doubt." Hooks , 689 F.3d at 1163 (quoting Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) ).

Even if a federal habeas court finds that the state court decision was contrary to or an unreasonable application of clearly established federal law, habeas relief may not issue unless the violation is of a sort that warrants such relief. See e.g., Williams , 529 U.S. at 375, 120 S.Ct. 1495 ("It is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas."); Wilson v. Sirmons, 536 F.3d 1064, 1073 (10th Cir. 2008) ("If we find that the state court erred, we still must determine whether the error is a structural defect ‘in the constitution of the trial mechanism, which def[ies] analysis by "harmless-error" standards.’ ") (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ), rehearing en banc granted on separate issue, 549 F.3d 1267 (10th Cir. 2008).

Finally, because Petitioner is proceeding pro se , the Court construes his pleadings liberally. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). The Court will not, however, "take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Id.

III. Motion for Appointment of Counsel

Along with his original Petition, Petitioner filed a Motion for Appointment of Counsel. Doc. 3. On January 29, 2019, this Court denied that motion, noting that it is generally unnecessary to appoint counsel before a case has reached the stage of the proceedings where an evidentiary hearing may be required. Doc. 16. Accordingly, the Court characterized Petitioner's request for appointment of counsel as premature, denying it without prejudice. Id.

The Court has now had the opportunity to consider the merits of the Petition as well as Respondents' Answer. Because it determines herein that the Petition is without merit and that no evidentiary hearing is required, it likewise finds that it is unnecessary to revisit its previous decision to deny the appointment of counsel in this case.

IV. Discussion

A. Exhaustion and Procedural Default

The petitioner in a habeas action brought pursuant to 28 U.S.C. § 2254 must establish that he has properly exhausted available state-court remedies by raising his federal claim or claims in the state's highest court, either by direct review or in post-conviction proceedings. Dever v. Kan. State Penitentiary , 36 F.3d 1531, 1534 (10th. Cir. 1994). Respondents concede that Petitioner's claims have been properly exhausted in the state courts and are ripe for review, save one claim. See Doc. 14 at 4-5. Respondents maintain that Petitioner's second ground for relief regarding Michael Robinson has not been properly exhausted. Id. at 4.

Petitioner clearly raised issues as to Robinson in his state habeas petition.⁴ Indeed, many of the assertions in his federal habeas petition are identical to those made in his state habeas petition. See, e.g., Doc. 1 at 28-29. Yet, Petitioner failed to assert any claims related to Robinson in his petition seeking a writ of certiorari from the New Mexico Supreme Court. See Doc. 14-6 at HH. Because he did not give the State's highest court the opportunity to review his claims related to Robinson, they have not been properly exhausted.

4 By way of example, Petitioner argued in his state habeas petition that Mr. Harris was ineffective because he failed to file a pretrial motion for production of a supplemental report by Officer Garcia in order to impeach the testimony of Robinson, failed to make discovery requests or file motions to suppress related to Robinson, filed only a conclusory motion to strike Robinson's testimony, failed to file a motion to produce the criminal history of Robinson, failed to file a motion in limine requiring a voir dire examination before Robinson could testify, and failed to file a motion to suppress regarding Robinson's admitted drug use. Doc. 14-2 , Ex. Q, at 13-14, 16.

Respondents describe these claims as "technically exhausted" but "procedurally defaulted." Doc. 14 at 4, 8. They suggest that "[i]t is unlikely that [Petitioner] would be able to return to state court to present these claims, thus making a second appearance before the New Mexico Supreme Court nearly impossible." Id. at 9. More specifically, Respondents note that New Mexico Rule 5-802(I) NMRA enumerates only limited circumstances in which a petitioner may file a second or successive petition. Id. (citing NMRA 5-802(I) ). State-court remedies are technically exhausted when they are no longer available, regardless of the reason for their unavailability. Woodford v. Ngo , 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). However, "exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court." Id. at 93, 126 S.Ct. 2378. Instead, if Petitioner procedurally defaulted those claims, he generally is barred from asserting them in a federal habeas proceeding. Id. at 92-93, 126 S.Ct. 2378.

Accordingly, ground two of the Petition should not be considered by this Court unless Petitioner can demonstrate cause and prejudice for failing to comply with the State's procedural rules or a fundamental miscarriage of justice, see Smallwood v. Gibson , 191 F.3d 1257,1268 (10th Cir. 1999), or if the court determines that the claims can be easily resolved on the merits, see 28 U.S.C. § 2254(b)(2) ; Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000). To show "cause" for failing to comply with a state's procedural rules, a petitioner must show that "some objective factor external to the defense impeded his compliance with New Mexico's procedural rules." Watson v. New Mexico , 45 F.3d 385, 388 (10th Cir. 1995) (citations and quotation marks omitted). Petitioner has made no such allegation or showing here. To demonstrate a "fundamental miscarriage of justice," a petitioner must make a "colorable showing of factual innocence." Demarest v. Price , 130 F.3d 922, 941 (10th Cir. 1997) (citation omitted). A claim of factual innocence requires a petitioner to "support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial." Frost v. Pryor , 749 F.3d 1212, 1232 (10th Cir. 2014) (citation and quotation omitted). This evidence must be so convincing that, had it been introduced at trial, no reasonable juror would find the petitioner guilty. Id. Petitioner has submitted no new evidence to make a showing of factual innocence. As such, his procedurally-defaulted claims may not proceed under the "fundamental miscarriage of justice" test. Moreover, his second ground for relief cannot be easily disposed of on the merits. Therefore, the Court concludes that Petitioner's failure to seek certiorari review of his claim(s) related to the use of Michael Robinson as a confidential informant and as a witness at trial is not excused. These claims are procedurally defaulted and should not be considered by this Court.

B. Ineffective Assistance of Counsel Grounds

To establish ineffective assistance of counsel, a litigant must satisfy a two-part test. First, he must show that counsel's performance was deficient because it fell below an objective standard of reasonableness. Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he must show that counsel's deficient performance prejudiced him. Id. at 687, 104 S.Ct. 2052. To demonstrate that counsel was ineffective, the litigant must satisfy both prongs outlined in Strickland. See id. The Court may address each of these components in any order and need not address both if the litigant makes an insufficient showing on one. United States v. Dowell , 388 F. App'x. 781, 783 (10th Cir. 2010) (citing Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ).

In demonstrating that counsel's performance was deficient under the first prong of the Strickland test, "judicial scrutiny of counsel's performance must be highly deferential" and the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. The reasonableness of counsel's performance must be evaluated considering all the circumstances. Id. at 688, 104 S.Ct. 2052. In addition, to establish prejudice under the second prong of the Strickland test, a petitioner must show "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "Surmounting Strickland's high bar is never easy." Harrington v. Richter , 562 U.S. 86, 88, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (citation omitted). When a Strickland challenge is coupled with the "highly deferential" standards of § 2254, the litigant's burden of proving unreasonableness becomes even more difficult. Id. The question becomes not whether counsel's actions were reasonable, but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105, 131 S.Ct. 770.

A number of Petitioner's grounds for relief fall under the umbrella of ineffective assistance of counsel. In the most clearly stated grounds, Petitioner argues that Mr. Harris rendered constitutionally defective representation by (1) providing legal representation while impaired by a drug and alcohol habit; (2) failing to disclose an "irreconcilable conflict" resulting from his employment of Monica Caroland; and (3) failing to discover "that neither Deputy Caroland nor Officer Garcia were commissioned law enforcement officers...." Doc. 1 at 5, 8, 10; Doc. 1-1 at 13-15. Additionally, Petitioner argues that there were "[a]dditional acts" showing Mr. Harris's ineffectiveness, including facts associated with the "Undercover Sting Operation." Doc. 1 at 14; Doc. 1-1 at 11. For example, he maintains that Mr. Harris failed to obtain a supplemental police report prepared by Officer Garcia, failed to make adequate discovery requests, failed to file motions to suppress despite compelling grounds, filed ineffective motions to strike the testimony of Officer Garcia and Robinson, and failed to conduct a proper investigation. Doc. 1-1 at 11, 16. But these issues involve Mr. Harris's decisions related to trial tactics for which he is afforded wide latitude and over which Petitioner must overcome a presumption of sound trial strategy. See Strickland , 466 U.S. at 689, 104 S.Ct. 2052. Petitioner has done nothing to overcome this presumption. Any claim related to the purported "[a]dditional acts showing ineffective assistance of counsel" or the "Undercover Sting Operation" should be denied.

As for the three more developed ineffective-assistance claims, the Court will analyze each in turn.

i. Randall Harris's alleged impairment

Notably, Petitioner's criminal jury trial took place in the Ninth Judicial District Court, the same court to which this Court must turn for evaluation of the State's rationale for denial of habeas relief. See supra Part I. On collateral review, the state trial court considered and rejected Petitioner's claim that a drug and alcohol impairment by Mr. Harris rendered his representation of Petitioner ineffective. Doc. 14-6 , Ex. DD. The trial court noted that when the question of Mr. Harris's possible impairment arose during jury selection, it "directly addressed Mr. Harris about the issue and found that [he] was not impaired." See Doc. 14-6 , Ex. DD, at 4. The court explained that it had been "in close proximity to Mr. Harris and made an informed ruling on the issue of Mr. Harris's impairment." Id. According to the court, neither its personal observations nor the trial record supports the conclusion that Mr. Harris was impaired during his representation of Petitioner at trial. Id. at 5.

At the December 28, 2017 hearing on Petitioner's state habeas petition, Mr. Harris's former administrative assistant, Debbie Phillips, who worked closely and consistently with Mr. Harris before and during Petitioner's trial, swore that Mr. Harris was not impaired by drugs and/or alcohol at the time of jury selection or on the day of trial. Id. at 4. Having heard Ms. Phillips' testimony to this effect and noting that Mr. Harris is now deceased and no longer Ms. Phillip's employer, the court expressly found Ms. Phillips to be a credible witness. Id. Additionally, the trial court noted that Petitioner himself testified at the December 28, 2017 hearing that he was "not concerned" about any impairment by Mr. Harris, even though he reported smelling alcohol on Mr. Harris at one point during trial. Id. Significantly, Petitioner did not raise the issue of any impairment by Mr. Harris at the time of trial. Id.

Ultimately, the trial court applied the Strickland test and concluded that Petitioner failed to show that Mr. Harris's representation was not that of a "reasonable, competent attorney" or that "but for counsel's ‘error,’ there was a reasonable probability that the result of the conviction proceedings would have been different." Id. at 5. As noted by Respondents, the trial court was in an ideal situation to personally observe and evaluate any possible impairment by Mr. Harris and its effect on his representation of Petitioner. See Schriro v. Landrigan , 550 U.S. 465, 476, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (noting that the presiding judge on post-conviction review was "ideally situated" to assess the petitioner's statements at sentencing because she was also the sentencing judge).

Petitioner has failed to satisfy his § 2254(d) burden, as he cannot demonstrate that the trial court determined the facts concerning Mr. Harris's purported impairment in an unreasonable manner or that its decision under Strickland was contrary to or involved an unreasonable application of clearly established federal law. Having reviewed the record as a whole, including the trial transcript, the Court is satisfied that there is at least a reasonable argument that counsel satisfied Strickland's deferential standard. As to ground one, the Court recommends denial of the Petition.

ii. Randall Harris alleged "irreconcilable conflict"

In addition to his purported impairment, Petitioner also suggests that an "irreconcilable conflict" of interest, of which he was unaware at the time of trial, rendered Mr. Harris's representation ineffective. Doc. 1 at 8; Doc. 1-1 , at 4. To establish ineffective assistance of counsel, a petitioner must demonstrate that his attorney's performance was adversely affected by an "actual conflict of interest," as opposed to the "possibility of conflict." See Cuyler v. Sullivan , 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

In an attempt to show an actual conflict of interest, Petitioner relies heavily upon the rationale of Judge Armijo of this District in United States v. Green , 09cr0311 MCA/WPL (D.N.M. Feb. 14, 2012). There, Mr. Harris also represented the defendant in a criminal prosecution. See Green , 09cr0311 MCA/WPL, Doc. 229 at 2. And as is the case here, Phil Caroland led the investigation that resulted in charges against the defendant.⁵ Id. at 1-2. Immediately before trial in Green , the federal prosecutor informed the Court that Phil Caroland, a key witness for the Government, was married to an associate working in Mr. Harris's small law office. Id. at 2. Mr. Harris assured the Court, however, that he had established a firewall within his office so that Mrs. Caroland would have no involvement or access to information regarding the defendant's case. Id.

5 In contrast to this case, in Green , Phil Caroland himself acted in an undercover capacity, entering the defendant's medical office while wearing a concealed recording device and seeking a prescription for methadone. See Green , 09cr0311 MCA/WPL, Doc. 229, at 2.

Sixteen weeks after the defendant was convicted in Green , a subsequent attorney filed a motion for new trial on her behalf, grounded in part on the theory that Mr. Harris had represented her under a conflict of interest and that her attempt to waive that conflict was invalid. Id. at 4. Defendant submitted sworn affidavits calling into question whether Mr. Harris had actually created the firewall he discussed with the court and whether any such firewall could in fact be established in light of the organizational layout of his law office. Id. at 11. The defendant there maintained that Mr. Harris made affirmative and misleading representations concerning the extent and effectiveness of a firewall. Id. at 12. According to the Court, this new evidence was material to the defendant's Sixth Amendment right to conflict-free counsel. Id. The Court determined, unequivocally, that "Mr. Harris was indeed conflicted," noting that under the New Mexico Rules of Professional Conduct, Mrs. Caroland could not have represented the defendant and that, as an associate of Mr. Harris, her conflict was imputed to Mr. Harris. Id. at 13-14, 123 S.Ct. 362. The Court acknowledged that the defendant could have nevertheless knowingly waived the conflict but reasoned that the evidence presented suggested that "Mr. Harris may have misrepresented the actions he took to ensure a firewall around Mrs. Caroland." Id. at 16, 123 S.Ct. 362. According to the Court, the evidence suggested that either no firewall was actually contemplated by Mr. Harris or, alternatively, that the firewall put into place was effectively a sham. Id. The Court provided the following admonishment to Mr. Harris:

Trust is at the very core of an attorney-client relationship. It is of concern to this Court that Mr. Harris may have represented [the] [d]efendant under a conflict of interest, where a conflict was not validly waived, and under circumstances whereby [the d]efendant, the Court, and possibly the Government may have been misinformed as to the nature and extent undertaken by him to protect her interests.

Id. at 19.

Here, Petitioner submits that the "identical facts existed when the Harris Law Firm represented" him. Doc. 14-2 , Ex. Q, at 6; see also Doc. 14-6, Ex. HH, at 5. But as concerning as Mr. Harris's actions or inactions were in Green , the Court is simply not confronted with the same concerns here. As the state habeas court found, even though Mrs. Caroland was working at Mr. Harris's firm at the time Petitioner was investigated, including at the time of the November 16, 2012 controlled buy, she was no longer working at the firm by the time of Petitioner's criminal prosecution. Indeed, the affidavit submitted by Mrs. Caroland states that she did not work with Mr. Harris's law firm in 2013, having left in December 2012. Doc. 1-1 at 82. Significantly, Petitioner was not indicted until March 2013, nor arrested until August 2013. See Doc. 14-6 at 104, 110. And Mr. Harris's entry of appearance on Petitioner's behalf came four months after Mrs. Caroland left his law office, in April 2013. See id. at 108. These facts are easily distinguishable from those in Green.

The state habeas court reached the same conclusion, determining that the conflict which burdened Mr. Harris's representation of the defendant in Green did not similarly burden his representation of Petitioner in this case. Doc. 14-6 at 45. In fact, it found that no conflict existed at all. Id. Critically, Petitioner has not shown that the state habeas court's decision regarding Mr. Harris's purported conflict of interest constitutes an objectively unreasonable application of clearly established federal law. Instead, the Court finds the state habeas court's determination to be perfectly reasonable. The Court recommends that the Petition be denied as to ground three.

iii. Deputy Caroland and Officer Garcia's Commissions as Law Enforcement Agents

In ground four, Petitioner challenges the "lack of a proper appointment of Phil Caroland and Kandi Garcia as commissioned law enforcement officers." Doc. 1 at 10. Petitioner maintains that if Mr. Harris had conducted a basic investigation of Deputy Caroland and Officer Garcia's commissions, he would have been able to prevent them from testifying at trial and would have nullified the Grand Jury Indictment. Doc. 1-1 at 14-15. Petitioner reasons that the lack of commissions rendered Officer Caroland without the authority to arrest or charge him. Id. at 9. Respondents insist that, even apart from the issue of the validity of the officers' commissions, this claim must fail because Petitioner cannot demonstrate that he was prejudiced by any issue with these officers' commissions. Doc. 14 at 15. This Court agrees.

The state habeas court recounted testimony from William Elliott, Private Investigator, provided at the December 28, 2017 hearing. Doc. 14-6 at 46. According to the court, Mr. Elliott showed that Deputy Caroland's commission card had not been properly filed, and neither Deputy Caroland nor the State contested this showing. Id. Deputy Caroland provided testimony that he believed his commission card had been properly filed but subsequently learned that there had been a clerical error that affected its filing. Id. at 47. The state habeas court found that while a clerical error had caused "an issue" with the filing of Deputy Caroland's commission card, it was due to no fault of Deputy Caroland, and he was not aware of the error at the time of Petitioner's case. Id. Having found that Deputy Caroland was at all relevant times a certified law enforcement officer, the state habeas court determined that Petitioner failed to demonstrate any prejudice. Id. As to Officer Garcia, the state habeas court noted that Petitioner had presented no evidence of her commission status, nor any evidence of any prejudice from a defective commission. Id. Thus, no facts supported Petitioner's claims in this regard. Id.

The Court cannot say that the state habeas court made unreasonable determinations of fact as to the officers' certifications or commissions in light of the evidence presented. Nor has Petitioner shown that the state habeas court's decision as to the officers' commissions constitutes an objectively unreasonable application of clearly established federal law. Despite the issue with the filing of Deputy Caroland's commission card, the evidence suggests that Deputy Caroland was a certified law enforcement officer at the time of the subject investigation and at the time of Petitioner's arrest and prosecution. Under these circumstances, Mr. Harris's failure to pursue any challenge to the commissions of Deputy Caroland and Officer Garcia was not constitutionally defective, and the Petition should be denied on this ground. C. Claims in Petitioner's Supplemental Amendment

In his Supplemental Amendment, Petitioner seeks to add the issues of "Double Jeopardy" and "Illegal Enhancement" to the grounds for relief asserted in his Petition. Doc. 7. Petitioner offers no factual assertions in support of these grounds in his Supplemental Amendment; however, the issues were previously addressed by New Mexico Court of Appeals on direct appeal. Indeed, the Court of Appeals initially proposed reversing Petitioner's convictions on these grounds. Doc. 14-1 , Ex. F, at 5.

i. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See United States v. Dixon , 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Here, the Court surmises that Petitioner asserts double jeopardy on the basis that he received multiple punishments for the same offense. The determination of whether Petitioner's "punishments are multiple in violation of the Double Jeopardy Clause is essentially one of legislative intent." Dennis v. Poppel , 222 F.3d 1245, 1251 (10th Cir. 2000). Critically, federal courts must "defer to a state court's interpretation of state law in determining whether an incident constitutes one or more than one offense for double jeopardy purposes." Thomas v. Kerby , 44 F.3d 884, 887 (10th Cir. 1995) (citations omitted).

Swafford v. State , 112 N.M. 3, 810 P.2d 1223 (1991) provides the framework under New Mexico law for analyzing claims of double jeopardy for convictions under multiple statutes. The Swafford test inquires:

whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes. If the conduct is non-unitary, then multiple punishments would not violate the Double Jeopardy Clause. If the conduct is unitary, the court must then proceed to the second prong of the test, which asks whether the legislature intended multiple punishment for unitary conduct.

Lucero v. Kerby , 133 F.3d 1299, 1316 (10th Cir. 1998) (quoting Swafford , 810 P.2d at 1234 ) (internal citations and quotations omitted) (emphasis added). The New Mexico Supreme Court explained in Swafford that conduct is non-unitary if the "events are sufficiently separated by either time or space" or if "the quality and nature of the acts or ... the objects and results involved" are distinguishable. Swafford , 810 P.2d at 1233-34.

Federal courts have recognized that "conspiracy to commit a crime is not the same offense as the substantive crime for double jeopardy purposes, because the agreement to do the act is distinct from the [completed] act itself." United States v. Fornia-Castillo , 408 F.3d 52, 69 (1st Cir. 2005) (internal quotation marks and citations omitted). Further, "[u]nder New Mexico law, courts have upheld separate convictions for conspiracy to commit trafficking and the act of trafficking when the evidence showed more than just the exchange of drugs for money." State v. Silvas , 343 P.3d 616, 622 (N.M. 2015). Nevertheless, here, the Court of Appeals expressed initial concerns that Petitioner's conviction for trafficking and conspiracy to commit trafficking for a single sale of drugs may be a violation of double jeopardy protections, citing Silvas. See Doc. 14-1 , Ex. F, at 5. In Silvas , the New Mexico Supreme Court held that double jeopardy precluded the defendant's convictions for trafficking and conspiracy where both offenses were premised on a singular sale of drugs to another woman. Silvas , 343 P.3d at 621.

Here, though, after considering the arguments of the parties through briefing, the Court of Appeals was able to discern two separate factual bases for Petitioner's drug trafficking and conspiracy convictions. Distinguishing the facts in Petitioner's case from those in Silvas , the court explained:

[I]t appears that the State's theory was that [Petitioner] conspired with Sharon Kirven and Bobby Molett to retrieve the drugs from the bedroom, and [Petitioner] sold the drugs to Robinson. Therefore, the State asserts that the conspiracy agreement was among [Petitioner], Kirven, and Molett, which was separate and apart from the drug sale to Robinson. The record reflects that there was evidence presented that it was Kirven's house; Molett retrieved the drugs from the bedroom after [Petitioner] gave him permission to do so; and [Petitioner] sold the drugs to Robinson.

Doc. 14-1 , Ex. I, at 10-11. Thus, in the view of the Court of Appeals, Petitioner's assent to and direction of Kirven and Molett in the sale of drugs justified the conspiracy conviction while his involvement in the actual exchange of drugs for money with Robinson supported his trafficking conviction. See Doc. 14-1 , Ex. I, at 9-11; Doc. 14-1 , Ex. K, at 3-4. Having determined that Petitioner's conduct was non-unitary, it was unnecessary for the court to determine whether the legislature intended multiple punishments. See Swafford , 810 P.2d at 1234.

The Court is satisfied that the state court's application of federal law on the issue of double jeopardy was a reasonable one. Although the offenses of drug trafficking and conspiracy to commit drug trafficking may not have been substantially separated in time or space, the quality and nature of the acts supporting these convictions was distinguishable. See Lucero , 133 F.3d at 1320-22 (concluding that although there was no significant separation of conduct by time or place, the acts related to the offenses were of a different quality or nature and were therefore non-unitary). Once again, it was the actual exchange of drugs for money with Robinson that constituted drug trafficking. And it was the assent to and direction of his co-conspirators that constituted conspiracy to commit drug trafficking, regardless of whether the drug transaction was completed. As such, the Court cannot conclude that the decision of the New Mexico Court of Appeals to deny Petitioner's double jeopardy claim was contrary to, or involved an unreasonable application of, clearly established federal law. Nor was it based on any unreasonable determination of the facts in light of the evidence presented. The Court recommends that the Petition be denied on the double jeopardy issue.

ii. Illegal Sentencing Enhancement

In the sixth and final ground, Petitioner asserts that he was subject to an "Illegal [Sentencing] Enhancement." Doc. 7. Prior to his drug trafficking conviction in the underlying case, Petitioner was twice convicted of drug trafficking. Doc. 14-1 , Ex. I, at 11. One of those prior trafficking convictions was used to enhance his trafficking offense in this case from a second-degree felony to a first-degree felony. Id. at 12. The second trafficking conviction, along with a conviction for criminal solicitation, was used to enhance Petitioner's sentence under the habitual offender statute. Id. On direct appeal, Petitioner asserted that his sentence was illegal because the State failed, with respect to his criminal solicitation conviction, to prove the requisite conviction-crime sequence. Id. at 12. Specifically, he submitted that the State failed to establish that he committed criminal solicitation after his conviction for possession with intent to distribute. Id. Presumably, Petitioner intends to advance the same illegal-sentencing-enhancement argument here. See Doc. 7.

In addressing his sentencing argument on direct appeal, the Court of Appeals quoted the New Mexico Supreme Court in State v. Linam , 93 N.M. 307, 600 P.2d 253 (1979) :

[I]t is inherent in the habitual criminal act that, after punishment is imposed for the commission of a crime, the increased penalty is held In terrorem over the criminal for the purpose of effecting his reformation and preventing further and subsequent offenses by him. Thus the use of the words "upon conviction of such second felony" or "third felony" as used in the statute must be held to mean felonies committed subsequent to the dates of the convictions relied on to effect an increase of the penalty. Otherwise the reform object of the legislation to provide a deterrent from future crimes would not be realized.

Doc. 14-1 , Ex. I, at 13 (quoting Linam , 600 P.2d at 255 ). In Linam , the New Mexico Supreme Court found "no direct proof that each of the offenses was committed subsequent to the date of the next preceding conviction relied on [to] effect an increase of the penalty in each instance." Id. at 256. Consequently, the court held that there was insufficient evidence to support the decision that the convictions and commissions of crimes followed the requisite conviction-crime sequence. Id.

Although the State was unable to provide evidence of the date on which Petitioner's criminal solicitation offense occurred, Doc. 14-1 , Ex. I, at 13-14, it explained that Petitioner's sentencing argument "depend[ed] on the possible, but unlikely, premise that [Petitioner] was convicted in late 2010 of a crime that happened at least six years before the date of conviction." Id. at 14. Persuaded by the unlikeliness of this premise, the Court of Appeals affirmed the district court's sentencing enhancement. In so doing, it relied upon State v. Graham , 134 N.M. 613, 81 P.3d 556 (Ct. App. 2003), reversed on other grounds by 137 N.M. 197, 109 P.3d 285, in which the defendant raised for the first time on appeal the sequencing of his convictions under the habitual offender act. The Graham court determined that the defendant's argument, without an adequate record, was insufficient to justify remand. Id. at 558. Following that rationale in this case, the Court of Appeals proposed to affirm Petitioner's convictions but invited the filing of a petition for habeas corpus pursuant to New Mexico Rule 5-802.

Petitioner followed through with the invited state habeas filing, on May 7, 2018, when he raised the issue of a purportedly illegal sentence in his Supplemental Amendment. Unfortunately for Petitioner, though, he provided no argument or basis on which the Court could find in his favor on this issue.

Notably, federal courts "afford wide discretion to the state trial court's sentencing decision, and challenges to that decision are not generally constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits or unauthorized by law." Dennis , 222 F.3d at 1258. Petitioner has failed to make such a showing. Nor has he demonstrated, as he must, that the state court's affirmance of his sentence constitutes an unreasonable application of federal law or was based on an unreasonable determination of facts in light of the evidence. Pursuant to 28 U.S.C. § 2254(e)(1), determinations of factual issues made by a state court are presumed correct, and it is a petitioner's burden to "rebut[ ] the presumption of correctness by clear and convincing evidence." Here, Petitioner has done nothing to overcome the presumption in favor of the state court's determination. The Court recommends denying his Petition on this final ground.

V. Recommendations

For the reasons set forth herein, the Court recommends that Petitioner's § 2254 Petition be denied and dismissed with prejudice. The Court further recommends that a certificate of appealability be likewise denied.